DC judge denies defendants' motion to dismiss Michael Mann's defamation complaint

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Superior Court of the District of Columbia

Superior Court of the District of Columbia

Accusing a scientist of conducting his research fraudulently is a factual allegation that can be proven true or false, not mere hyperbolic opinionating. If it is false it is defamatory, and if it is made with actual malice it is actionable. So said DC Superior Court Frederick Weisberg in tossing out motions by defendants National Review et al. to dismiss Prof. Michael Mann's defamation complaint -- thus moving the case a step toward discovery proceedings and a jury trial.

[Our apologies for the lag time in moderating, posting, and replying to comments on this post that were submitted through mid-afternoon January 23. Couldn't be helped.]

Text of Judge Weisberg's ruling

The matter before the court in this latest step of the thus-far procedurally rather tangled case was on the separate special motions of defendants Mark Steyn and National Review, Inc. and of defendants Competitive Enterprise Institute and Rand Simberg to dismiss Michael Mann's amended defamation complaint. On January 22 DC Superior Court Judge Weisberg denied defendants' motions to dismiss under the DC Anti-SLAPP Act and on one other ground.

The judge's ruling, and specifically what he says in his order, looks good for Prof. Mann's position. Here's a bit of what Judge Weisberg said:

Opinions and rhetorical hyperbole are protected speech under the First Amendment. Arguably, several of defendants’ statements fall into these protected categories. Some of defendants’ statements, however, contain what could reasonably be understood as assertions of fact. Accusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth are factual allegations. They go to the heart of scientific integrity. They can be proven true or false. If false, they are defamatory. If made with actual malice, they are actionable. Viewing the allegations of the amended complaint in the light most favorable to the plaintiff, a reasonable finder of fact is likely to find in favor of the plaintiff on each of Counts I-VI, including the Intentional Infliction of Emotional Distress alleged in Count VI as to both sets of defendants.

So much for the argument that what Simberg and Steyn were doing was mere opinionating, mere rhetorical flourishes. Judge Weisberg appears to slam dunk that position. It's against the law to accuse someone, with malice, of scientific fraud, if the accusation won't stand up in court (and not just to the satisfaction of the defendants and their support subculture).

Weisberg continued (underlining added):

In Count VII, plaintiff alleges that CEI published, and National Review republished, the following defamatory statement: “Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.” The allegedly defamatory aspect of this sentence is the statement that plaintiff “molested and tortured data,” not the rhetorically hyperbolic comparison to convicted child molester Jerry Sandusky. ...

The statement “he has molested and tortured data” could easily be interpreted to mean that the plaintiff distorted, manipulated, or misrepresented his data. Certainly the statement is capable of a defamatory meaning, which means the questions of whether it was false and made with “actual malice” are questions of fact for the jury. ... [T]o state as a fact that a scientist dishonestly molests or tortures data to serve a political agenda would have a strong likelihood of damaging his reputation within his profession, which is the very essence of defamation. ...

Well that's interesting. Commenters on the case have focused on the rhetoric of the Jerry Sandusky analogy, while perhaps not keeping their eye on the "molested and tortured data" part. The defendants and their support subculture have been throwing around this sort of casually malicious and intellectually sloppy defamation of climate scientists so much, for so long, that perhaps they're surprised to learn they can be busted for it.

Weisberg:

Viewing the alleged facts in the light most favorable to plaintiff, as the court must on a motion to dismiss, a reasonable jury is likely to find the statement that Dr. Mann “molested and tortured data” was false, was published with knowledge of its falsity or reckless disregard of whether it was false or not, and is actionable as a matter of law irrespective of special harm. ...

Turning to the special motion of defendants National Review and Steyn to dismiss Count VII, when Mr. Steyn republished Mr. Simberg’s words, he stopped short of wholeheartedly endorsing the offensive Sandusky metaphor. Nevertheless, Mr. Steyn did not disavow the assertion of fact that Dr. Mann had “molested and tortured data,” and he added insult to injury by describing Dr. Mann as “the man behind the fraudulent climate-change ‘hockey-stick’ graph.” ...  In context, calling Dr. Mann’s work “fraudulent” is itself defamatory...

Supporters of the defendants made a point of accusing the previous judge in the case of incompetence and other bad things. It will be interesting to see if they continue to play that card by slamming Judge Weisberg as well. They seemed to think the previous judge's rulings would be trashed and re-done, but as it turns out they got essentially the same thing from Judge Weisberg in this new ruling.

We hope this ends the roadblocks to moving on to the discovery phase. The defendants may appeal Judge Weisberg's ruling, but the opportunities for delay seem to be running out. We have the impression that National Review and the Competitive Enterprise Institute aren't particularly eager to be opened up to discovery. On the other hand, Prof. Mann apparently isn't too worried about it as he pushes his case forward -- contrary to what his attackers always seem to assume.

*    *    *

Briefly, on how this case got started, from a post at Climate Progress:

The kick-off for the lawsuit was actually a piece written by Rand Simberg at the Competitive Enterprise Institute (CEI), which referred to Mann as “the Jerry Sandusky of climate science” because he “molested and tortured data in the service of politicized science.” The editors eventually removed the offending sentences, but not before Mark Steyn picked them up at National Review’s online blog. Steyn said he wasn’t sure he’d have “extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point.” He then went on to call Mann’s work on the famous “hockey stick” graph “fraudulent.” So Mann sued Simberg, Steyn, CEI and National Review for defamation.

Also see:

Rabett Run: Mann vs Steyn Lurches Forward

Jonathan Adler at the Washington Post online: Mann v. Steyn -- Mann wins round two

Earlier CSW posts on the case:

Michael Mann defamation lawsuit -- calling on the judge to apply the law of the case doctrine (January 14)

DC Court of Appeals dismisses an appeal by Defendants in Michael Mann defamation lawsuit (December 30, 2013)

DC judge denies another effort to derail Michael Mann's defamation lawsuit (September 13, 2013)

Judge denies National Review's Motion to Reconsider ruling in Michael Mann's defamation case (August 30, 2013)

Michael Mann v. National Review et al. defamation lawsuit - new Plaintiff's briefs (August 19, 2013)

DC Court affirms Michael Mann's right to proceed in defamation lawsuit against National Review and CEI (July 19, 2013)

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26 Responses to DC judge denies defendants' motion to dismiss Michael Mann's defamation complaint

  1. Bill Rees says:

    That's a rather strange interpretation.
    Surely whether a statement is defamatory depends on who it comes from.
    If a meteorologist, for example, had suggested that Professor Mann had been "molesting and torturing" the data, that would indeed have a major bearing on the Professor's reputation.
    But if someone who isn't a scientist - who indeed falls into the classification of being a "denialist" - makes the same accusation, it should have no bearing at all on the Professor's reputation. As far as he is concerned, you may think it's like being criticised by Adolf Hitler.
    The idea that anything Mark Steyn says about Professor Mann could damage his reputation is ludicrous.

    • Rick - Climate Science Watch says:

      Re: "The idea that anything Mark Steyn says about Professor Mann could damage his reputation is ludicrous."

      But, to quote from Judge Weisberg's ruling denying the defendants' motion to dismiss (emphasis added):
      "...to state as a fact that a scientist dishonestly molests or tortures data to serve a political agenda would have a strong likelihood of damaging his reputation within his profession, which is the very essence of defamation. ... Viewing the alleged facts in the light most favorable to plaintiff, as the court must on a motion to dismiss, a reasonable jury is likely to find the statement that Dr. Mann “molested and tortured data” was false, was published with knowledge of its falsity or reckless disregard of whether it was false or not, and is actionable as a matter of law irrespective of special harm.

  2. Jerry C says:

    The author, like most non-lawyers, misinterpreted the judge's opinion. In ruling against the defendants the judge did not slam dunk the defendant's position. In any motion to dismiss by a defendant, the judge must assume the allegations of the plaintiff are true whether or not the allegations are actually true! Usually the plaintiff's attorney has to be a complete moron to lose by summary disposition because it is more a testament of the techniques in drafting the complaint not the truth of the matters alleged. That is why motions to dismiss on the pleadings are very rarely granted no matter who the judge is on the case.

    • Sherry Moore says:

      You r 100% correct. The judge merely uses boilerplate language "facts in the light most favorable to the plaintiff", etc. the simple truth is at trial, plaintiff has the burden of proof. The defense to this, is defendants will argue it's true. Plaintiff will be put thru a VERY uncomfortable discovery process, to that end. He better be careful what he wishes for.

  3. GC says:

    As a lawyer with a smattering of experience in defamation suits, I never thought the comparison to Sandusky defamatory. However, calling someone a fraud certainly can be defamatory. I also know that Judges hate to throw out a case if there is any chance the plaintiff might win, since the plaintiff is entitled to his day in court unless he has absolutely no chance of winning. Therefore, I was not too surprized when the much maligned earlier decision (of the now retired judge whose name escapes me) came out in favour of allowing the plaintiff to continue even though the reasons were appallingly written and bordered on illogical. The result was probably correct even though the reasoning was tortured. (I also would have retired after writing that drivel). Likewise, the most recent decision is also legally correct though far better reasoned - if Mann has a chance to win, he must be allowed to proceed and calling a scientist a fraud is prima facie defamatory so he does at least have a chance to win.
    If I were Mann though, I would not necessarily be rejoicing at this decision. Had Steyn & co succeeded in throwing out the case (and I don't blame them for trying), everyone could have walked away from this more or less intact, if a little out of pocket on legal fees. Now that there will be a trial, the job of the defendants will be to rip apart Mann's personal and scientific credibility and there is going to be blood. Any scientific theory is subject to criticism - its what scientists do. I am no climate scientist so I really have no idea if the earth is warming and if mankind is causing it (though I do have a degree in history and claiming that the climate stayed the same for so long before the last fifty years has always puzzled me given that the Romans preferred the fine English wines of their time and London regularly held winter fairs on the frozen River Thames during the "Little Ice Age). But the stupidest thing the global warmers did was shout from the rooftops that the science was settled. In my respectful opinion, that's an unscientific thing to say -especially for something as nebulas as predicting the weather for the next 500 years. Claiming you have won the Nobel Prize when you clearly haven't is also going to give the defendants a field day.
    Mann may or may not win the lawsuit but at the end of the day, its his reputation he himself is putting before the Court, and which will be reported in the news every day. Nobody is forcing him to do this and all he is doing is giving his opponents a high profile opportunity to takes as many shots as they want at his professional competence, his theories, his claims, his boasts, his personality and his data. In my view, he has nothing to win and everything to lose. He may or may not be a fraud but wisdom can be a rare and precious commodity. He can only hope that the trial takes place when the cold weather outside is not breaking records!

    • Bryson Brown says:

      GC, lots of science is settled. CO2 is a greenhouse gas (i.e. it's transparent to visible light but absorbs a fair bit of infrared). The stratosphere is cooling, while the troposphere warms (an important 'fingerprint' of GHG warming). Warmer air carries more water vapour (ask a pilot about take offs on hot, humid summer days). And H2O is also a greenhouse gas. (There's lots more where these came from...) Saying that science is never settled is just a lazy excuse for ignoring the science you don't want to know. In the real world, we base all kinds of policies and decisions on well-established science. How else would you propose engineering bridges or evaluating vaccines?

      • Brent says:

        "Saying that science is never settled is just a lazy excuse for ignoring the science you don't want to know."
        How convenient it is when there is nothing left to dispute. Who is lazy now?

        • Rick - Climate Science Watch says:

          This needs more nuance. Scientific assessments, such as those we get from the National Academy of Sciences, the Intergovernmental Panel on Climate Change, and the U.S. Global Change Research Program, synthesize the state of understanding at a particular time, drawing on a wide range of scientific literature and drafted and reviewed by multiple credentialed authors. Some of the conclusions are made with high confidence -- high probability, with a strong evidence. Other conclusions are made with only middling confidence, as likely but with noted uncertainty -- but are regarded as important to call to the attention of decisionmakers nevertheless. After all, the purpose of the assessment is to synthesize the state of knowledge accessibly in terms of its relevance to its intended audience and to decisionmaking. Others issues remain quite uncertain, and this will be noted. All of this relies on a combination of a large amount of peer-reviewed literature and the judgment of the leading experts in the field. Assessments will include a discussion of high-priority issues in need of more research.

          I personally don't use the term 'settled science', but I do refer to conclusions that are broadly shared by the overwhelming number of credentialed climate science experts. That's who those who are not specialists should primarily look to for assessment. I think it can be very strongly argued that enough is understood that decisionmakers need to take human-caused climatic disruption and its likely consequences seriously and develop emissions-reduction and adaptive preparedness policies to manage our way through the problem. All the while, continuing to support a very strong ongoing research and assessment program, in the U.S. and internationally, so that there is an intelligent relationship between scientific assessment and societal decisionmaking.The U.S. has a $2.5 billion Global Change Research Program to deal with many scientific issues -- the science will never be 'done', but rather scientific research is an essential part of our intelligence capability for undera=standing our relationship to and impacts on the Earth system. But that does not preclude taking action to the extent that science supports it.

          A problem arose when we saw that corporate and ideological interests intent on blocking climate policy development and regulation of emissions adopted a predatory approach to scientific uncertainty, i.e., they used scientists' tendency to be cautious about drawing strong conclusions to develop a public narrative that scientific uncertainty was so fundamental that it precluded anything beyond further research -- but not mitigation and adaptation policy. This was something like what the tobacco industry got away with for many years, and is well-documented and referenced, including on this website. Science can always be called unsettled, but those of us, including most of the climate science community, who believe the science is strong enough to support proactive policy responses (to put it mildly) are pretty much out of patience with those elementary know-nothing 'skeptics' who really haven't studied the science and who are just reacting negatively from their political and cultural biases.

    • njp says:

      GC: "I am no climate scientist so I really have no idea if the earth is warming and if mankind is causing it (though I do have a degree in history and claiming that the climate stayed the same for so long before the last fifty years has always puzzled me given that the Romans preferred the fine English wines of their time and London regularly held winter fairs on the frozen River Thames during the "Little Ice Age)."

      GC, Nobody claims the climate is static. However:

      Leaving aside the suitability of vines as temperature proxies, and the fact that vines are today grown commercially further north than any known Roman vineyards, can I ask where you got this idea that the Romans preferred "fine English wines"? All the evidence I've seen suggests a great deal of wine was imported to England, and it seems unlikely that the local grown plonk was ever exported.

      Frost fairs on the Thames were more about the constriction of the river flow from the structures that then existed, than they were about low temperatures. Indeed, the Thames has since failed to freeze in colder winters than ones that hosted frost fairs.

      That the Earth is warming and that we are contributing to that warming is indeed settled science. The only reasonable objections concern the magnitude of future warming under various emission scenarios, and the consequences of that warming. So you may regard that part of the science as "not settled" - though almost everyone who has any scientific credibility agrees that we ought to be reducing our CO2 emissions, and that not doing so is going to be very costly.

    • Sherry Moore says:

      GC they are missing your point: Mann will be under the microscope: and can we say Litigation Privilege? Yep. When the defense files their summary judgment motion every critical a exhibit will be public record, and duly reviewed by the public. This is clearly going to back fire, IMO. Mann isn't going to walk away happy, but frustrated at his very public lawsuit.

  4. Eli Rabett says:

    Eli put up an update pointing to your longer take

  5. MikeP says:

    The phrase "molested and tortured the data" is not defamatory, but is rather commonly used within the scientific community to accuse someone of selective interpretation of results. It is very offensive to say to a scientist, certainly, but almost all data is open to interpretation and often contradictory conclusions can be found. Non-scientists often struggle to understand this. Science is rarely conclusive. Mann's data and results were obviously cherrypicked to support a warming hypothesis in my opinion and well towards the edge of what the scientific community would consider normal.

    The phrase "fraudulent hockey stick graph" is more of a problem in terms of defamation, but Mann will have to defend the emails that came out discussing the 'tricks' used to make the graph that are now in the public domain. Discovery of the documentation that was not public regarding the hockey stick may be problematic for Mann as that hockey stick became far far more important than it should have been.
    It is reasonable to see his work as very edgy and very politicized, far beyond just basic reporting of facts. This case will be anything but straightforward.

    • Bryson Brown says:

      It looks like you have a dog in this fight, Mike-- don't let that fool you. The emails have had their day in the sun, and been found unimpressive by everyone who's looked at them. Quotes dragged out of context (one might even say molested and tortured to suggest a result they didn't really support) won't be a problem in a court of law.

      • W R McBride says:

        Have you ever been inside a court of law? Do you have any idea how it works?

        It means NOTHING that climate emails have been seen and found to be nothing by other believers in warming. The case is going to be decided by a jury of Steyn's peers, many of whom have little background in science.

        All bets are off in predicting how they will decide the case, especially once Steyn's attorneys show that Mann and his witnesses have received millions of dollars in grants to promote their theory. The waitresses and truck drivers on the jury are going to be a tough group to persuade, that Mann and his group of millionaires deserve anything.

        The jury room isn't going to be a lecture hall in a university science department.

  6. Fred Z says:

    Steyn is right on the merits, the judge was right on the procedure. His order was careful, well phrased and simply stated what should have been obvious to everyone: You cannot summarily dismiss even a far fetched claim if it has any faint hope of success. Summary dismissals are extremely rare. It does not take much to get to a trial on the merits.

    I suspect the whole procedural mess was as a result of Mann's lawyer's stupidity in pleading that Mann was a Nobel laureate and some showmanship and game playing by NRO and Steyn, not improper gaming, but tactical gaming to probe Mann.

    Steyn complains that the defendants have spent half a mill on legals so far. No doubt Mann has spent as much. Jeez, I wonder where an honest, hard working, man of the peepul like Mann gets half a mill to fritter away on a lawsuit without too much hope of economic recovery.

  7. Jeremy Kemp says:

    Great news.

    Exactly which part(s) of their activities the deniers are exposed and publicly discredited for is relatively unimportant. What matters is that they are.

    The organised denial machine has been instrumental in causing decades of delay in tackling anthropogenic climate change, with the huge global incremental cost - human, financial and environmental - that that implies, but maybe it will be the defamation of a single individual by a small subset of deniers, rather than the arguably greater crimes of the organised deniers as a whole (sorry Mike - no intention here of making light of your own protracted ordeal at their hands) that starts the crucial job of publicly bringing the deniers and their tactics to book. After all, Al Capone was eventually locked up for tax evasion, which was only one part of a far greater empire of crime.

    Good luck to Michael Mann in his efforts to start to bring some accountability to the anti-science climate change deniers.

    I’m now off to make another donation to the CSLDF, to celebrate!

  8. John Mashey says:

    Good post, thanks.
    These cases take a while, the ones in Canada (Mann vs Ball, and Weaver vs Ball, Weaver vs National Post) are still cranking along as well.

  9. JeffFreedom says:

    The phrase "torturing the data" as first attributed to an economist seems to mean that if you work long enough you will eventually prove what you set out to prove. In that sense, it is not indicative of criminal fraud but poor research practices.
    Did Mann "molest" the data? And what does that mean? Who gets to decide? Mann will need to walk through his process step by step. If a goes to b to c, he wins, perhaps.
    If a goes to d then f, to get to c, perhaps not. If a jury is involved, he appears to be completely unlikable. Another issue.

  10. Conrad Dunkerson says:

    The people gloating about, 'how much discovery is going to hurt Mann' are eventually going to need to confront the reality that Mann continues to push to BEGIN discovery while Steyn and the other defendants have filed motion after motion to stay discovery and dismiss the case without ever getting there.

    Discovery COULD have been going on for months now... even while the motions for dismissal were being considered. It has been the DEFENDANTS who have blocked that. Does it never occur to deniers to wonder WHY reality proceeds exactly opposite to their expectations?

  11. Franklin Smith says:

    Has Mann made all his hockey stick data public yet? I am under the impression he has not.

    Two questions: 1) If not, why not? 2) What happens if it is determined during discovery that his methods were flawed (he cherry picked the proxies to "accentuate" the warming trend)?

    • Rick - Climate Science Watch says:

      The commenter appears to have been too influenced by anti-climate-science propaganda, so the question gives the impression of trolling rather than seeking real understanding. But OK, to clarify once again for the record:

      The data have always been available--in MULTIPLE places. This was explained back in 2005 in the official reply to Rep. Joe Barton by Mann and his colleagues:
      http://www.realclimate.org/index.php/archives/2005/07/barton-and-the-hockey-stick/
      specifically here:
      http://www.realclimate.org/Mann_response_to_Barton.pdf

      The RealClimate group of climate scientists notes "two main points that we have explained in great detail in earlier postings:

      "There is no case for casting doubt on the scientific value and integrity of the studies by Mann et al. – they have been replicated by other scientists, the data and the computer code are available in the public domain (including the actual fortran program used to implement the MBH98 procedure), and many other studies with different data and methods have confirmed the prime conclusion: that it is likely that the late 20th Century is the warmest period of at least the past one thousand years.

      "The above studies are just one small piece of evidence in a very solid scientific case that humans are now altering the climate – and with or without this piece of evidence, this case is firm (see our post “What if the Hockey Stick were wrong?” or the commentary on Prometheus).

      "The real question we are faced with is not whether humans are changing climate. The science on this is clear, and decades of research have culminated in a scientific consensus on this point. The real question now is what we need to do about it."
      [Links are included in the Real Climate posting.]

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